PARKASH CHAND Vs. LAL CHAND

JUDGEMENT

(1.) s appeal is directed against judgment and decree dated 07.09.2001 passed by learned District Judge, Una, in Civil Appeal No.65 of 1996 affirming judgment, decree dated 23.05.1996 passed by learned Sub Judge Ist Class (1), Amb, in Case No.138 of 1992.

(2.) The facts, in brief, are that respondent No.1 had filed a suit for mandatory injunction against appellant and Dhani Ram with a direction to appellant to deliver the possession of one shop out of two shops situate over land measuring 0-00-68 Centares comprised in Khasra Nos.802, 803, more specifically described in the plaint, on payment of Rs. 6,000/- or any other amount fixed by the Court. It was pleaded that land measuring 0-39-44 hectares comprised in Khasra Nos. 798, 804 and 805 as per missal haqiat settlement 1986-87 was jointly owned and possessed by parties along with other co-sharers. The parties to the suit were entitled for 1/3rd share through their father deceased Lekh Raj, whereas, Moti Ram, Saran alias Tirath Ram were entitled for remaining 2/3rd shares.

(3.) In private partition between the parties in October, 1991, the land was divided. Out of total land, 35 feet abutting road was given to the parties to the suit and the possession was taken. The parties to the suit are brothers entitled to 11.30 feet area each abutting the road. It has been stated that there is no other joint land of the parties having same commercial value as that of the suit land. The appellant and Dhani Ram had no right to raise construction over total land measuring 35 feet in width which was allotted to the parties. The respondent No.1, who filed the suit, pleaded that he was serving in Indian Army and remained posted outside, whereas, appellant and Dhani Ram stayed in village Chhaproh.